Garrett v. Damron, 35042.
| Decision Date | 14 December 1937 |
| Docket Number | No. 35042.,35042. |
| Citation | 110 S.W.2d 1112 |
| Court | Missouri Supreme Court |
| Parties | GARRETT v. DAMRON et al. |
Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.
Suit by Thomas E. Garrett against Mary Malinda Damron, Thomas Ellenorah Damron, and others. From the judgment, named defendants appeal.
Affirmed.
Anderson & Whittington, of St. Louis, for appellants.
Cullen, Storckman & Coil, Taylor R. Young, and Richard A. Austin, all of St. Louis, for respondent.
BRADLEY, Commissioner.
This cause, in partition, involves title to real estate as between respondent on the one hand, and the appellants on the other. The trial court found that plaintiff was the owner of a 6/40 interest in the land, and that defendants Mary Malinda and Thomas Ellenorah Damron were the owners of 17/40 each. It was found (as we infer, by agreement) that defendant Northwestern Mutual Life Insurance Company had a first mortgage on all the land. Defendant Adderton was a tenant on the land and in possession, and defendant Malone was trustee in the insurance company's mortgage. The petition asked an accounting as to defendants Mary Malinda and Thomas Ellenorah Damron, and defendant Adderton, the tenant, but this feature was abandoned.
Partition was ordered, commissioners appointed, etc. Motion for new trial was filed by defendants Mary Malinda and Thomas Ellenorah Damron, which motion was overruled and they appealed.
The land sought to be partitioned lies in Pike and Lincoln counties, with the greater part in Pike, where the cause was filed and tried. James N. Damron owned the land, about 600 acres (called the home farm and the homestead in the will hereinafter set out), when he died, March 12, 1891. Damron left surviving him his widow, Malinda E. Damron, and five children, Mary Malinda, age 15; Sarah Frances, age 13; Thomas Ellenorah, age 11; James William, age 9; and Eliza, age 6. The will, omitting witness clause and signature, is as follows:
The youngest daughter, Eliza, died in about six weeks after the death of her father. James William Damron was the next to die, and he died before he was 21, and without issue. Sarah Frances died without issue April 6, 1931, and at the time of her death she was the wife of plaintiff. The widow, Malinda E., the life tenant, died February 8, 1932. Plaintiff contends that under the will, his wife, Sarah Frances, upon the death of the testator, took a vested interest, and that as her widower, he is, under the second subdivision of section 325, R.S.1929 (Mo.St.Ann. § 325, p. 212, subd. 2), entitled to one-half of his wife's interest. Laws 1921, p. 119 (now section 319, R.S. 1929 [Mo.St.Ann. § 319, p. 205]), abolishing curtesy, impliedly repealed (except as to personal property) what appears in the Revised Statutes 1929 as section 324 (Mo.St. Ann. § 324, p. 210), so that both widow and widower are under the provisions of sections 325 and 327, R.S.1929 (Mo.St.Ann. §§ 325, 327, pp. 212, 215). Thomas v. McGhee, 320 Mo. 519, 8 S.W.2d 71. See, also, O'Brien v. Sedalia Trust Co., 319 Mo. 1001, 5 S.W 2d 74. In the O'Brien Case the implied repeal ruling was not limited to real property, but this was corrected in the McGhee Case. On the other hand, appellants contend that no interest indefeasibly vested in Sarah Frances (or any of the children) at testator's death; that the vesting of any title or interest in Sarah Frances, plaintiff's wife, was contingent on the death of her mother, the life tenant, prior to the death of Sarah Frances; and that since Sarah Frances predeceased her mother, no title or interest ever vested in Sarah Frances. And if such is so, then plaintiff has no interest in the land. Also, appellants contend that even though the will be construed as plaintiff contends, yet he has no interest, other than dower, because he failed to elect under section 327, R.S.1929 (Mo.St.Ann. § 327, p. 215).
Did the remainder interest, created by the will, vest in the Damron children at the time of the death of the testator? Since the widow did not relinquish her life estate prior to her death, it will simplify matters a bit to connect the pertinent parts of paragraphs first and second of the will into a single paragraph, and state it as though the will read as follows: "In lieu of dower, I give, devise and bequeath to my wife, Malinda E. Damron, the free and unrestricted use, possession and benefit of the home farm so long as she may live, and it is my will and desire that at the death of my wife, Malinda E. Damron, the homestead (the home farm) revert to my children or to the lawful heirs of each, namely, Mary Malinda Damron, Sarah Frances Damron, Thomas Ellenorah Damron, James William Damron, and Eliza Damron."
The primary rule for the construction of wills is to determine the "true intent and meaning of the testator." Section 567, R.S.1929 (Mo.St.Ann. § 567, p. 344); and the intention of the testator will control unless it contravenes some established rule of law. St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135. Section 567 of the statute is merely a statutory declaration of the well-settled rule that in construing a will courts must give effect to the intention of the testator as gathered from the entire will. Doneghy et al. v. Robinson (Mo.Sup.) 210 S.W. 655. But when the provisions of a will are not entirely clear from the will itself, then certain auxiliary rules of construction may be invoked, and one of these rules frequently invoked is that the law favors vested estates. Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947, loc.cit. 950, and cases there cited.
Appellants rely principally on Green v. Irvin, 309 Mo. 302, 274 S.W. 684, 685; Emmerson v. Hughes et al., 110 Mo. 627, 19 S.W. 979; Tevis v. Tevis, 259 Mo. 19, 167 S.W. 1003, 1004, Ann.Cas.1917A, 865, and Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035, 1036.
The Green Case was to determine interest in, and to partition 164 acres of land. The controversy hinged on the construction of the will of Andrew J. Myers, who died in 1876, owning the land. The clause involved was as follows:
"I give to my daughter, Levina Irvin, wife of James Irvin (lands in suit described) during her life and after her death to go to her heirs."
James Irvin, husband of Levina, died in 1911, at which time Levina had nine living children. Among the children of Levina at the time of the death of her husband, Irvin, were James Lewis Irvin and Thomas L. Irvin. In April, 1919, Thomas L. and his wife by warranty deed conveyed whatever interest he had in the land to James L. Thomas L. died in October, 1919, leaving as his sole heirs three minor sons, who were made defendants in the suit. Levina died in May, 1921. The controversy was over a one-ninth interest, claimed on the one hand by James Lewis Irvin under the deed, and on the other by the three minor sons of Thomas L. It was claimed for these minor sons that the deed from their father to their uncle, James L. Irvin, conveyed nothing, because it was made prior to the death of the life tenant, Levina, and because their father, Thomas L., died prior to the death of the life tenant. It was held that, under the will, no interest vested in the children of Levina at the time of the death of the testator, her father, and that under the will no interest could vest in Levina's children until her death, and that the interest of Thomas L., which would have vested in him had he survived his mother, Levina, the life tenant, upon her death, vested in Thomas L.'s three minor sons. The trial court's conclusions were approved by this court. These conclusions were:
"That said will devised a life estate to Levina Irvin with remainder to the persons who might be her heirs at the time of her death; that such devise of remainder was not to such persons as were heirs of the testator, but to those who were heirs of Levina Irvin, at the time of her death; that said Thomas L. Irvin had only a contingent remainder, conditioned upon his surviving his mother; that, having died before his mother, his heirs became the owners of said one-ninth interest, and defendant James Lewis Irvin had acquired no title by the said deed."
In the Green Case the court stated that no part of the will was in the record, except the clause above quoted, and that there was, for this reason, no...
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